Amendments at risk of derailing USA FREEDOM

Jochai Ben-Avie June 1, 2015

On Sunday night, the U.S. Senate advanced the USA FREEDOM Act on a vote of 77-17, taking the largest step toward surveillance reform by this chamber in decades. We’re glad the Senate heard the loud chorus of voices demanding reform and voted in favor of the legislation, and we hope they will swiftly overcome the remaining procedural hurdles standing in the way of this important legislation without attaching any harmful amendments.

Real reform now is critical and this legislation will further serve as a foundation for the many reforms needed to restore users’ trust in the Internet, which is why we’re concerned to see several amendments put forward by Senate Majority Leader McConnell. Mozilla opposes all of the amendments up for a vote tomorrow:

Amendment 1451 – Guts amicus provision: The USA FREEDOM Act as approved by the House included good (not great) language appointing outside experts in certain cases, who would be charged to argue for protections for privacy and civil liberties. Amendment 1451 would remove these duties, rendering the amicus advocates ineffective and removing most benefits of the amicus provision.

Amendment 1450 – Doubles the waiting period before the law goes into effect: This amendment would extend from 6 months to 12 the transition period from current bulk collection to company-held data, despite clear indications from the NSA that they can transition fully in 6 months. The primary practical impact of the extended waiting period would be six months of unnecessary bulk collection and opportunities to weaken or curtail reforms.

Amendment 1449 – Requires providers to give notice about data retention policies: This amendment requires an “electronic communication service provider” to give 6 months notice to the Attorney General if that service provider intends to retain its call detail records for a period of less than 18 months. In practice, this could be interpreted as a data retention mandate, even though the Director of National Intelligence has already said that no new data retention mandate is needed. Requiring this kind of notification before a company can change its internal policies is unnecessary interference and seems to serve no purpose other than to undermine user privacy and security.

Due to a procedural move by Majority Leader McConnell, these are likely to be the only amendments considered by the Senate. However, if any of these amendments are adopted, this bill will need to go back to the House for another vote. It is unclear whether the House would adopt an amended version or how long it would take to approve a watered-down version of a bill that the House so overwhelmingly approved. We urge the Senate to pass the House version of the USA FREEDOM Act swiftly to avoid any further delay in enacting the reforms this country needs.